Friday, July 15, 2016

If this isn't a rubber stamp - what is?

Thirty-two years ago last week the Supreme Court decided Leon. And that decision held that, in considering whether to sign a warrant, a magistrate must "not serve merely as a rubber stamp for the police." United States v. Leon, 468 U.S. 897, 914 (1984). Are magistrates meeting that requirement?

Using the only data that is available - warrants for wiretaps, FISA warrants and delayed-notice warrants establishes that over 99% of the warrants requested in those areas were approved without any modification. Starting with warrants for wiretaps - according to the "Wiretap Report 2015" released by the United States Courts, "[a] total of 4,148 wiretaps were reported as authorized in 2015, with 1,403 authorized by federal judges and 2,745 authorized by state judges." If 4,148 were authorized how many were denied? "No wiretap applications were reported as denied in 2015."

How about FISA warrants? According to the Department of Justice, 1499 applications were made to the FISC court in 2015. Of those 1,457 requested to included a request to perform electronic surveillance. Of those 1,457 applications one was later withdrawn by the government. Of the remaining 1,456 applications, none were denied, "in whole, or in part."

It is probably better with delayed-notice search warrant requests, right? Maybe a little. According to the Administrative Office of the United States Courts 2014 report, of the 7,627 warrant requests made for delayed-notice search warrants 43 were denied and 64 were granted with some modification. That means that approximately one half of one percent of the application for delayed-notice warrants were denied, and less than one percent that were approved were even approved with some modification. That means of the 7,627 delayed-notice warrants, 99% were approved without any modification. Interestingly, the jurisdiction with the highest number of applications was the District of Kansas, with 909 requests. This was 170 applications more than the second highest district, the Southern District of California with 739.

With numbers like this, maybe it is time to revisit Leon and ensure that the Leon requirement that "courts must also insist that the magistrate purport to perform his neutral and detached function and not serve merely as a rubber stamp for the police" is being met. Even a rubber stamp misses the mark once in a while.